Archive for September, 2010

Altair Engineering (Altair) is a Michigan-based company that sells energy efficient solid state lighting products, particularly LED lamps, through its subsidiary, Ilumisys.

Altair owns U.S. Patent Nos. 7,049,761 (‘761 Patent) and 7,510,299 (‘299 Patent), both directed to a light tube for a fluorescent light fixure having a plurality of light emitting diodes within the bulb.

Light tube (20) is illuminated by LEDs (22) packaged inside the tube. The light tube (20) includes a cylindrically shaped bulb portion (24) having a pair of end caps (26, 28) at opposite ends of the bulb portion.

The LEDs are mounted on a circuit board (30). The circuit board (30) and LEDs (22) are enclosed by the bulb portion (24) and the end caps (26, 28).

The two patents are related in that the ‘299 Patent is a continuation of the ‘761 Patent, which means the patents have the same written description and figures but different claims.

Last month Altair sued LEDS America in the U.S. District Court for the Eastern District of Michigan alleging that the Florida-based LED maker’s LED-O T-8 Replacement Tube product infringes the ‘761 and ‘299 Patents.

The complaint (altair_complaint.pdf) provides a little bit of the backstory of the dispute, including a preview of one potential non-infringement argument.

According to the complaint, the defendant told Altair that its products do not infringe the asserted patents because they do not have an “end cap” as required by the claims of the patents, but instead have a “power supply.”

The complaint alleges that, prior to bringing the suit, Altair ordered one of the T-8 products and confirmed that the “power supply” is actually a large “end cap.”

Another point of interest relating to the infringement issue is that there is recent precedent as to the meaning of one of the terms of the ‘761 patent claims.

Last year another LED maker also targeted by Altair in the Eastern District of Michigan, LEDdynamics, won a partial summary judgment ruling that one of its LED tube replacement products did not infringe certain claims of the ‘761 Patent.

The ruling (altair_order.pdf) was based on the court’s claim construction interpreting the term “a plurality of closely-spaced light emitting diodes” to mean that adjacent LEDs are sufficiently close that another LED can’t fit in between them.

If the case gets to the claim construction phase, it will be interesting to see if the “closely-spaced” term and the prior interpretation of it plays a role.

A welcome addition to the Green IP blogosphere, Michael Tschupp’s Sustainable Marks blog is about “trademarks, patents, and advertising – from a green perspective.”

Tschupp’s primary focus seems to be eco-marks and green consumer protection issues, and his Weekly Round-Up of New Green Trademarks is a nice resource, not to mention lots of fun for trademark mavens and green consumers.

The blog’s signature Round-Up, posted every Tuesday, provides a sampling of green trademarks, service marks and certification marks published for opposition and awarded registration by the U.S. Patent and Trademark Office.

Tschupp is an attorney at the Miami, Florida IP law firm of Espinosa Trueba.

I look forward to much exciting eco-mark news from the Sustainable Marks blog.

In a previous post, I wrote about Mitsubishi’s wind patent-based antitrust suit against GE.

In this case, Mitsubishi has alleged that GE filed baseless lawsuits against Mitsubishi asserting patents GE knows are invalid as part of an anticompetitive scheme to monopolize the U.S. market for variable speed wind turbines.

Last month Judge J. Leon Holmes of the U.S. District Court for the Western District of Arkansas granted GE’s motion to stay the antitrust case pending resolution of the subject patent infringement actions. Judge Holmes denied GE’s motion to dismiss the antitrust case.

A stay is “warranted,” according to the Opinion and Order (mitsubishi-ge_order.pdf), because a victory by GE in any of the subject patent infringement actions would render the antitrust case moot and demonstrate that Mitsubishi’s antitrust claims lack merit:

First, if GE prevails in any of the infringement actions, then Mitsubishi’s claims in this action will be moot because GE will have the right to exclude Mitsubishi from the market. . . .Secondly, a final victory by GE in either of the infringement actions would establish that the action was not sham litigation because ‘[a] winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham.’

On the motion to dismiss, GE contended that Mitsubishi’s antitrust claims were baseless because GE had achieved some preliminary success in its ITC case in an administrative law judge’s (ALJ) initial decision, later reversed in part, that found Mitsubishi had infringed GE’s patents.

GE also asserted that Mitsubishi did not plead its fraud allegations with sufficient particularity.

The Opinion noted that the ALJ decision may be evidence that the ITC case was not a sham, but is not conclusive on the issue.

Judge Holmes further held that Mitsubishi had adequately pleaded the fraud allegations because it identified each patent application asserted to be fraudulent and which aspects of the patent applications were allegedly fraudulent.

Though Judge Holmes has put the brakes on this case, there is still plenty of action between GE and Mitsubishi: the ITC case is currently on appeal before the Federal Circuit, the case filed in the Northern District of Texas is going forward, and Mitsubishi recently brought its own wind patent infringement suit against GE in Florida.

In previous posts (here and here), I’ve discussed the series of patent infringement suits brought by GreenShift and its New York subsidiary, GS Cleantech, against a host of ethanol producers across the midwestern United States.

The litigation currently consists of 11 actions in which GreenShift has accused the defendants of infringing U.S. Patent No. 7,601,858 (‘858 Patent), entitled “Method of processing ethanol byproducts and related subsystems.”

In the Transfer Order, the Panel found that there would be common questions of fact among all the cases and consolidation would be more efficient for the courts and more convenient for the parties:

we find that these eleven actions involve common questions of fact, and that centralization . . . in the Southern District of Indiana will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.

In particular, the Panel noted that the validity and enforceability of the ‘858 Patent are likely to be at issue in all eleven actions.

The Panel chose the Southern District of Indiana because it was a satisfactory and relatively convenient forum for most of the defendants:

This district is a primary or alternative choice for transferee forum for all but one responding party. Moreover, this readily accessible district is near many of the alleged direct infringers — ethanol manufacturers that allegedly employ the patented process — which are scattered throughout the Midwest.

The ‘858 Patent is directed to methods of recovering oil from byproducts of ethanol production using the process of dry milling, which creates a waste stream comprised of byproducts called whole stillage.

According to the ‘858 Patent, whole stillage contains valuable oil but prior processes for recovering this oil have been expensive or inefficient.

GreenShift’s patented method includes mechanically separating the whole stillage into distillers wet grains and thin stillage and then running the thin stillage into an evaporator to form a concentrated byproduct, or syrup. The syrup is fed through a second centrifuge, which separates usable corn oil from the syrup.

Tidal Energy Limited (TEL) is a UK company that makes tidal power devices. TEL recently received funding that it will use for a feasibility study of its “DeltaStream” technology and assess a potential deployment site for its device in West Wales.

The DeltaStream device has three horizontal axis turbines mounted on a common triangular frame. This configuration provides a low center of gravity and structural stability so the device can sit on the seabed without the need for an anchoring system.

TEL owns at least two international patent applications directed to its tidal power technology. International Publication Nos. WO 2009/081162 (‘162 Application) and WO 2010/007342 (‘342 Application) are directed to the tidal power device’s framework and node structure and turbine assembly, respectively.

Figure 1 of each application is essentially the same and is reproduced below. Both applications describe a freestanding structural frame assembly comprising steel tubes (2) and welded corner modules (3) interconnected by the tubes (2).

Angled tube limbs (7, 8) extend from the corner modules (3), with each limb fixed to a respective nacelle tower (9). Turbines (19) are mounted to each corner module (3) via a support shaft (20).

The frame assembly, which may have a triangular footprint, is held in position by its own mass and lack of buoyancy due to water flooding the tubes (2) and corner modules (3). The tubes’ (2) proximity to the sea bed and the structure’s large base area relative to height provide additional stability.

According to the ‘342 Application, the turbine blade stagger angle and the choice of blade profiles are optimized so that the axial load on the turbine is kept in check, even at high rotational speeds.

Other advantages TEL touts are the DeltaStream’s lightweight foundation, its lower cost of manufacture using many off the shelf components and the ease of maintenance, in particular because of quick replacement of the three nacelle modules.

Interestingly, the DeltaStream device marries two types of technologies: according to TEL’s web site, it “uses the same concept as a wind turbine together with ship propeller technology.”

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Justin Blows published the results of a recent study on his Clean IP blog regarding solar patent quality. The study focuses on Australian patentees in particular but includes data from other countries as well.

Blows and his colleague George Mokdsi, both of the Griffith Hack law firm, attempted to measure the quality of patents relating to solar power technologies by using the number of times a patent was cited during prosecution of subsequent patent applications as a proxy for patent quality.

The theory is that oft-cited patents are likely to involve foundational technologies that others in an industry may need access to. These patents also provide strong protection to the patentee by forcing later patent applications to reduce their scope of protection:

A patent that discloses a technology with strong foundational characteristics is likely to be cited during the prosecution of a latter filed patent that discloses incremental advances on the same technology. Often, the foundational patent will force down the scope of protection afforded by latter filed patents. Thus, patents with high citation counts generally provide broad and robust protection.

The analysis was restricted to U.S. patents and the data was retrieved from the U.S. Patent and Trademark Office. However, patentees from a number of countries were considered, including the U.S., Great Britain, Japan, Germany, France, Australia, Italy, China, Korea and Taiwan.

The study found that U.S. patentees have the highest quality solar power patents:

Patents from the US are on average cited the most, at 2.9 times per application. By this metric, US solar patents have on average the highest quality.

The study also notes trends in solar patent quality, with Japan’s quality increasing and the U.S.’s and Australia’s declining.

According to the study, the U.S. winner was U.S. Patent No. 6,297,539 (“‘539 Patent”), which was cited 181 times. The ‘539 Patent, issued October 2, 2001, is entitled “Doped zirconia, or zirconia-like, dielectric film transistor structure and deposition method for same” and lists Sharp Laboratories of America as the assignee.

The Australian winner was U.S. Patent No. 6,429,037 (‘037 Patent), cited 17 times. The ‘037 Patent issued August 6, 2002 and is entitled “Self aligning method for forming a selective emitter and metallization in a solar cell”. The ‘037 Patent lists Unisearch Limited, a Syndey company, as the assignee.